Smith v. Moss, et al

Filing 9

ORDER signed by Magistrate Judge Kendall J. Newman on 4/23/15 ORDERING that this action is DISMISSED. CASE CLOSED. (Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DARRELL SMITH,

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No. 2:15-cv-0359 KJN P

Plaintiff,

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v.

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S. MOSS, et al.,

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ORDER

Defendants.

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Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant

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to 42 U.S.C. § 1983. Plaintiff has consented to the jurisdiction of the undersigned. (ECF No. 7.)

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On February 24, 2015, the court dismissed plaintiff’s complaint with leave to amend.

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(ECF No. 4.) Pending before the court is plaintiff’s amended complaint. (ECF No. 8.) For the

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reasons stated herein, this action is dismissed.

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Named as defendants are S. Moss and G. Matteson. (Id. at 1.) Plaintiff alleges that he

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was denied due process during prison disciplinary proceedings. (Id. at 3.) In particular, plaintiff

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alleges that the rules violation report was not served within the time frame set forth in the

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regulations. (Id.)

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Attached as an exhibit to the amended complaint is a copy of the rules violation report.

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The report states that on October 29, 2013, Correctional Officer Johnson found a bindle in

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plaintiff’s front right jacket. (Id. at 20.) The bindle was later determined to contain marijuana.

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(Id.) Plaintiff was charged with possession of a controlled substance for distribution. (Id.)

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Plaintiff was found guilty and assessed 180 days loss of behavioral credits, 10 days loss of “ASU”

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yard, 30 days loss of all packages and special privileges, one year loss of visits, etc. (Id. at 26.)

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As relief, plaintiff requests that his disciplinary conviction be overturned, visits be restored and

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that he receive compensation.

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In Heck v. Humphrey, 512 U.S. 477 (1994), an Indiana state prisoner brought a civil

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rights action under § 1983 for damages. Claiming that state and county officials violated his

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constitutional rights, he sought damages for improprieties in the investigation leading to his

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arrest, for the destruction of evidence, and for conduct during his trial (“illegal and unlawful voice

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identification procedure”). Convicted on voluntary manslaughter charges, and serving a fifteen

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year term, plaintiff did not seek injunctive relief or release from custody. The United States

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Supreme Court affirmed the Court of Appeal’s dismissal of the complaint and held that:

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in order to recover damages for allegedly unconstitutional
conviction or imprisonment, or for other harm caused by actions
whose unlawfulness would render a conviction or sentence invalid,
a § 1983 plaintiff must prove that the conviction or sentence has
been reversed on direct appeal, expunged by executive order,
declared invalid by a state tribunal authorized to make such
determination, or called into question by a federal court's issuance
of a writ of habeas corpus, 28 U.S.C. § 2254. A claim for damages
bearing that relationship to a conviction or sentence that has not
been so invalidated is not cognizable under 1983.
Heck, 512 U.S. at 486.
In Heck, the Supreme Court expressly held that a cause of action for damages under §

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1983 concerning a criminal conviction or sentence cannot exist unless the conviction or sentence

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has been invalidated, expunged or reversed. Id.

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In Edwards v. Balisok, 520 U.S. 641 (1997), the Supreme Court held that Heck applies to

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challenges to prison disciplinary hearings when the nature of the challenge to the procedures

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could be such as necessarily to imply the invalidity of the judgment.

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Plaintiff’s claim alleging time constraint violations challenges the validity of his prison

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disciplinary conviction. A finding that the rules violation was not heard within the time limits

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provided for in the regulations would result in a reversal of plaintiff’s disciplinary conviction. It
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does not appear that this disciplinary conviction has been invalidated, expunged or reversed. For

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that reason, plaintiff’s claim for money damages based on the alleged violation of due process is

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barred by Heck. To the extent plaintiff seeks to simply overturn the disciplinary conviction, he

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must file a habeas corpus petition pursuant to 28 U.S.C. § 2254.

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Plaintiff also alleges that during the disciplinary hearing, he asked defendant Moss if he

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(plaintiff) could get his notes and a copy of Title 15. (ECF No. 8 at 5.) Plaintiff alleges that

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defendant Moss denied this request because he was not interested in hearing plaintiff’s side of the

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story “which led [plaintiff] to believe it was retaliation.” (Id.)

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“Within the prison context, a viable claim of First Amendment retaliation entails five

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basic elements: (1) An assertion that a state actor took some adverse action against an inmate (2)

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because of (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s

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exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate

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correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567–68 (9th Cir. 2005) (footnote

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omitted).

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The prisoner must show that the type of activity in which he was engaged was

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constitutionally protected, that the protected conduct was a substantial or motivating factor for the

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alleged retaliatory action, and that the retaliatory action advanced no legitimate penological

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interest. Hines v. Gomez, 108 F.3d 265, 267–68 (9th Cir. 1997) (inferring retaliatory motive

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from circumstantial evidence). Retaliatory motive may be shown by the timing of the allegedly-

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retaliatory act and other circumstantial evidence, as well as direct evidence. Bruce v. Ylst, 351

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F.3d 1283, 1288–89 (9th Cir. 2003). However, mere speculation that defendants acted out of

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retaliation is not sufficient. Wood v. Yordy, 753 F.3d 899, 904 (9th Cir. 2014) (citing cases)

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(affirming grant of summary judgment where there was no evidence that defendants knew about

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plaintiff’s prior lawsuit, or that defendants’ disparaging remarks were made in reference to prior

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lawsuit).

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For the following reasons, the undersigned finds that plaintiff has not stated a potentially

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colorable retaliation claim against defendant Moss. First, plaintiff has not demonstrated that

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defendant Moss violated a constitutional right by refusing to allow him to get his notes and a copy
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of Title 15. Plaintiff had a constitutional right to present documentary evidence at the

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disciplinary hearing. See Wolff v. McDonnell, 418 U.S. 539, 653-67 (1974). However, plaintiff

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did not have a constitutional right to have “notes,” which apparently were not evidence, or a copy

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of Title 15. Plaintiff does not claim that his “notes” were evidence which he was not permitted to

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present.1
In addition, plaintiff’s claim that defendant Moss denied his request to obtain his notes

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and a copy of Title 15 based on a retaliatory motive is vague and conclusory. Plaintiff does not

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describe why defendant Moss would have been motivated to retaliate against him. For these

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reasons, the undersigned finds that plaintiff has not stated a potentially colorable retaliation claim.

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Because plaintiff has not stated potentially colorable claims alleging violations of his
constitutional rights, this action is dismissed.

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Accordingly, IT IS HEREBY ORDERED that this action is dismissed.
Dated: April 23, 2015

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Sm359.dis
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If plaintiff claimed that his notes contained exculpatory evidence, then a claim alleging that
defendant Moss denied plaintiff’s request to obtain and present the notes/evidence would most
likely be Heck barred.
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